People v. Ordonez CA5
F086015
Cal. Ct. App.Apr 14, 2025Background
- Erik Ordonez was convicted of second degree murder, assault with a firearm (two counts), and being a felon in possession of a firearm, following an altercation at his apartment in which he shot and killed Jose Duran, Jr. (Junior).
- The incident arose during an attempt by Ordonez’s wife, Isabel, and her family to move out after Isabel decided to leave him due to his drinking and aggressive behavior.
- Tensions escalated when Ordonez brandished a firearm during an argument; Junior intervened and was shot and killed by Ordonez, who claimed self-defense.
- Ordonez was sentenced to 95 years to life, with the conviction enhanced for intentional discharge of a firearm causing death.
- On appeal, Ordonez (appellant) raised issues of instructional error, prosecutorial misconduct, sentencing error, ineffective assistance of counsel, and other trial errors.
- The Fifth Appellate District Court reviewed the trial court’s jury instructions, conduct of counsel, and sentencing decisions in detail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Instruction on CALCRIM No. 3472 (Self-defense, contrived circumstances) | Supported by evidence; appellant escalated a non-violent encounter by brandishing a firearm | No evidence to support the instruction; optional language on non-deadly force should have been given | No error; instruction supported by evidence or any error was harmless |
| Transferred Intent (CALCRIM No. 562) | Proper instruction; mental state transfers to unintended victim | Jury could be misled to disregard appellant’s intent if the wrong victim killed | Jury was properly instructed, no reasonable likelihood of confusion |
| Failure to Instruct on Self-defense for Assault Counts | Omission was harmless as jury already addressed the self-defense issue in murder count | Error was prejudicial, as possible lawful self-defense could be basis for acquittal on assault counts | Any error was harmless given defense's theory and jury's findings |
| Instruction on Temporary Possession of Firearm for Self-defense | Not supported by evidence as appellant kept gun for general—not temporary—defense | Should have instructed jury that temporary self-defense possession was a defense | No instructional error; evidence did not support temporary/justified possession defense |
| Unanimity Instruction for Assault/Firearm Possession | Prosecutor made clear election as to acts forming basis of charges | Needed due to possible multiple criminal acts supporting counts | Election was clear; no unanimity instruction required |
| Prosecutorial Misconduct & Ineffective Assistance | No misconduct or prejudice; prosecutor's arguments within bounds; defense counsel not ineffective | Counsel should have objected to various arguments; combined errors unfairly prejudicial | No prejudicial misconduct; counsel's performance did not affect outcome |
| Sentencing Enhancement Dismissal (Penal Code § 1385) | Forfeited as not requested; enhancement not responsible for sentence exceeding 20 years | Court should have dismissed enhancement due to sentence length | Subdivision inapplicable; error forfeited; no ineffective assistance |
| Victim Restitution Order | Forfeited for lack of objection; evidence supported recipient as a victim | Insufficient evidence of victim status; objected as error or ineffective assistance | Forfeited and not prejudicial; record supported restitution |
| Cumulative Error | Individual errors harmless; overall fair trial | Combined errors denied fair trial | No cumulative error; trial fundamentally fair |
Key Cases Cited
- People v. Diaz, 60 Cal.4th 1176 (Cal. 2015) (instructional requirements for criminal cases)
- People v. Guiton, 4 Cal.4th 1116 (Cal. 1993) (error to give irrelevant instruction)
- People v. Barton, 12 Cal.4th 186 (Cal. 1995) (definition of substantial evidence for jury instructions)
- People v. Bland, 28 Cal.4th 313 (Cal. 2002) (doctrine of transferred intent in homicide cases)
- People v. King, 22 Cal.3d 12 (Cal. 1978) (temporary possession of a firearm in self-defense for felons)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance of counsel standard)
- People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (forfeiture of sentencing claims if not raised at sentencing)